0120080501
11-26-2007
Brian E. Cummins, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Brian E. Cummins,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200805011
Agency Nos. 5-03-5009, 5-03-5087, 5-03-5100
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 29, 2006, finding that it
was in compliance with the terms of the September 30, 2003 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
7. The parties agree that they shall keep the terms and facts of this
[settlement agreement] confidential in accordance with 5 U.S.C. 571 et
seq., except as otherwise required by law and shall neither disclose
nor discuss its contents with any third party except those persons
necessary to carry out the terms or resolve disputes over compliance of
this Resolution Agreement.
By letter to the agency dated September 22, 2004, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that his prior EEO activity was discussed during the selection
process of Vacancy Announcement No. AMN-AT-04-ZDV-72580. The agency
issued a FAD (FAD1) finding that it did not breach the terms of the
settlement agreement.
Complainant appealed FAD1 to the Commission and in Cummins v. Department
of Transportation, EEOC Appeal No. 0120051371 (August 23, 2006), the
Commission remanded complainant's claim for a supplemental investigation
since we determined that the record was not sufficiently developed to
make a determination as to whether the agency breached the terms of the
settlement agreement as alleged. The agency conducted the supplemental
investigation and issued another FAD on December 29, 2006 (FAD2), which
is the FAD at issue in the instant case. In FAD2, the agency found
that the results of an investigation into the selection process revealed
that the terms of the settlement agreement were not discussed, nor were
complainant's prior EEO activity discussed. Ultimately, the agency
concluded that complainant was not selected for the position because he
was not qualified and not as a result of a breach of the settlement.
On appeal, complainant contends that the agency breached the settlement
agreement when the selecting officials discussed his prior EEO activity.
Further, for the first time on appeal, complainant contends that the
Facility Manger (FM) failed to support his application for an unspecified
position in violation of the settlement agreement.2 Since this claim was
not raised in complainant's original notification of noncompliance to the
EEO Director, we decline to address this matter on appeal. 29 C.F.R. �
1614.504(a), (b).
As a preliminary matter, we note that on appeal, we review the FAD issued
without a hearing de novo. 29 C.F.R. � 1614.405(a). EEOC Regulation 29
C.F.R. � 1614.504(a) provides that any settlement agreement knowingly
and voluntarily agreed to by the parties, reached at any stage of the
complaint process, shall be binding on both parties. The Commission
has held that a settlement agreement constitutes a contract between
the employee and the agency, to which ordinary rules of contract
construction apply. See Herrington v. Department of Defense, EEOC
Request No. 05960032 (December 9, 1996). The Commission has further held
that it is the intent of the parties as expressed in the contract, not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, we find that complainant failed to put forth
sufficient evidence to show that the agency breached the terms of
the settlement agreement. We note that the plain language of the
provision at issue prohibits the agency from discussing the terms or
facts of the settlement agreement. Complainant argues on appeal that
the settlement agreement also prohibits the agency from discussing his
prior EEO activity; however, we find that nothing in the plain meaning
of the settlement agreement supports complainant's contention. Instead,
the settlement agreement merely provides that the terms and the facts of
the settlement agreement will be confidential. While the supplemental
investigation reveals that some of the individuals involved in the
selection process knew that complainant had engaged in prior EEO related
activity, we find nothing in the record shows that this prior activity was
related to or part of those matters resolved by complainant and the agency
in the settlement agreement at issue in this case. The plain meaning of
the provisions of the settlement agreement pertain only to those terms
and facts of the September 30, 2003 settlement agreement. Further, even
though one member knew of the terms and facts of the settlement agreement,
he provided that he was entitled to the information as the Supervisory
Personnel Management Specialist. Others knew that a settlement was
reached, but did not know the substance of the settlement agreement and
the majority had no knowledge as to the settlement agreement whatsoever.
As such, we find that complainant failed to establish that the agency
breached the term of the settlement agreement as he alleged.
To the extent that complainant is alleging that the failure to select
him for Vacancy Announcement No. AMN-AT-04-ZDV-72580 was a breach of the
settlement agreement, we note that the EEOC regulations provide that
if complainant alleges that subsequent acts of discrimination violate
a settlement agreement, those allegations should be processed as an
individual complaint, as provided in 29 C.F.R. � 1614.106. 29 C.F.R. �
1614.504(b). Complainant is advised that if he wishes to pursue this
allegation through the EEO process, he must contact an EEO counselor
within 15 days after he receives this decision. The Commission advises
the agency if complainant seeks EEO counseling regarding this allegation
within the above 15-day period, the date complainant notified the agency
of the alleged breach shall be deemed the date of initial EEO contact,
unless he previously contacted a counselor regarding this matter, in
which case the earlier date shall serve as the EEO counselor contact date.
See Qatasha v. Navy, EEOC Request No. 05970201 (January 16, 1998).
Therefore we find that the agency appropriately determined that it did
not breach term (7) of the settlement agreement. As a result, we affirm
the agency's final decision finding that it did not breach the term of
the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____11/26/07______________
Date
1 The Commission mistakenly closed complainant's previous case on appeal,
EEOC Appeal No. 0120071550, on September 11, 2007. The Commission has
re-docketed complainant's claim in that case and will addresses the
merits of his settlement breach claim in the instant case.
2 The relevant provision of the settlement agreement is the following:
2(c). Complainant will meet with his immediate supervisor [(S1)] and
Operations Manager [(OM)] . . . to prepare a training plan for improving
complainant's interpersonal skills. Complainant agrees that he will be
open to appropriate feedback and coaching; he is committed to following
through on management's recommendations for enhancing his interpersonal
skills. [The FM] agrees that if [the S1] and [the OM] give complainant
a positive recommendation regarding complainant's interpersonal skills
that he will give complainant a positive reference and support him in
the selection process.
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0120071550
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120080501